McGeorge Law Review Volume 32 | Issue 4 Article 3 1-1-2001 Fatherhood, Feminism and Family Law Martha Albertson Fineman Cornell University Follow this and additional works at: https://scholarlycommons.pacific.edu/mlr Part of the Law Commons Recommended Citation Martha A. Fineman, Fatherhood, Feminism and Family Law, 32 McGeorge L. Rev. 1031 (2001). Available at: https://scholarlycommons.pacific.edu/mlr/vol32/iss4/3 This Article is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in McGeorge Law Review by an authorized editor of Scholarly Commons. For more information, please contact [email protected]. Fatherhood, Feminism and Family Law Martha Albertson Fineman* I. LEGAL THEORY AND THE FAMILY The language of the laws governing families in the United States is gender neutral.' This is as true with the categories of "mother" and "father" as with the categories of "husband" and "wife."2 One set of relationships is collapsed into "parent," and the other into "spouse" or "partner." Certainly, one of the most profound influences on this transformation to gender neutrality in family law was the gender equality revolution mounted by feminist legal practitioners and theorists in the latter part of the twentieth century.3 In reshaping the world into a more egalitarian place (at least in aspiration), feminists were not primarily focused on the workings of the average family. Most of their attention was drawn to the gendered and exclusionary nature of public institutions, such as the workplace. When intimate relationships came under feminist consideration, the issues most likely to be explored were violence against women in the home and from intimate partners (including sexual violence)5 and reproductive rights,6 rather than exploring how women's roles in intimate relationships served to disadvantage them in the market. Feminists generated public concern about sexual harassment in the workplace and domestic (and other-gendered) violence,7 which altered perceptions about sexuality and reproductive rights.' The family as an institution in these discussions tended to be treated as subsidiary to the market or as a bastion of male prerogative and privilege.9 The family was either another * Dorothea S. Clarke Professor of Feminist Jurisprudence. Cornell. B.A., 1971, Temple; J.D., 1975, University of Chicago. This paper was presented on October 19, 2000, as part of McGeorge School of Law's Distinguished Speaker series. 1. See MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM, 1-13, 19-35 (1991) [hereinafter ILLUSION OF EQUALITY] (describing this phenomenon). 2. See id.at 18-19 (describing divorce law changes). 3. See id.at 26-28 (discussing the efforts and results of this movement). 4. Id.at21. 5. See generally ELIZABETH SCHNEIDER, BATrERED WOMEN AND FEMINIST LAWMAKING (2000) (discussing the impact of domestic violence on legal reform). 6. The feminist movement surrounding reproductive rights focused on the rights of women to use birth control. See generally Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1964). 7. See, e.g.,CATHERINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSE ON LIFE AND THE LAW, 105-06 (1987). 8. See MARTHA ALBERTSON FINEMAN & ROXANNE MYKITIUK, THE PUBLIC NATURE OF PRIVATE VIOLENCE, Preface, xii-xv (1994) (demonstrating these feminists' desire to draw attention to women's struggles with the problems of harassment and gendered violence, as well as their desire to change the way it was treated in society). 9. ILLUSION OF EQUALITY, supra note 1,at 22-25. 1031 2001 / Fatherhood,Feminism and Family Law obstacle hindering full participation of women in the public sphere'" or an arrangement that left women subjected to domination and victimization in the private sphere." Women's traditional, gendered roles within the family were considered problematic primarily because they impeded realization of their role as equal participants in the economic and political aspects of life.' 2 Family and family roles, particularly that of mother, were often analyzed as oppressive and impeding individual growth-and independence.'3 The family itself was often alleged to often be violent and dangerous.'4 One assumption manifest in this treatment of the family and its relationship with other societal institutions was that family roles are malleable, easily recast and reformed in ways that can facilitate women's equality in the public sphere.'5 This is not the assumption in the public sphere where equality is not only formally imposed, but also monitored.' 6 Laws structure relationships in the 7 workplace' and mandate employers treat women equally." If there is discrimination, remedies are provided by individual and governmental actions.' 9 However, the equality imposed in this context is sameness of treatment for women-they are to be treated the same as men. 20 There is scant recognition that women and men may have different experiences, responsibilities and family demands' that require unequal treatment in order to achieve equality in end 10. See Martha L.A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 VA. L. REV. 2181, 2187 (1995) [hereinafter Masking Dependency] (discussing the cost of "intra-family dependency" and its disproportionate impact on women). 11. Barrie Thorne, Feminist Rethinking of the Family, in RETHINKING THE FAMILY 7 (Barrie Thorne and Marilyn Yalom eds., 1982). 12. MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES 35 (1995) [hereinafter NEUTERED MOTHER]. 13. See Martha Albertson Fineman, The Constitution of Civil Society D. the Family, 75 CHI.-KENT L. REV. 531, 543-45 nn.87-88 (2000) (discussing criticism of the institution of marriage). 14. Id. at 544 & n.88. See generally Schneider, supra note 5 (discussing domestic violence). 15. See Masking Dependency, supra note 10, at 2208-09 (explaining that if the mother works someone must be hired to care for the children). 16. The public sphere has not facilitated malleable gender roles as women are still predominant caretakers and are privatized within the family. Masking Dependency, supra note 10, at 2208-09. 17. Anti-discrimination laws such as Title VII supposedly allow women to achieve on equal grounds; anti-harassment laws are supposed to create a more comfortable workplace for women. 18. See, e.g., U.S.C.A. § 2000e-z (West 2001), unconstitutional as applied, Miller v. Bayview United Methodist Church, Inc., 141 F. Supp. 2d 1174 (2001). 19. State and federal law both contain anti-discrimination statutes to prevent discrimination against women. An example in federal law is Title VII, enforced by the EEOC. An expansive state statute prohibiting discrimination against women is the New Jersey Law Against Discrimination (NJLAD). 20. This sameness of treatment was a goal of the equality feminists; however, it does not take into account the unique factors in women's situations, such as disproportionate responsibility for caretaking and pregnancy. See NEUTERED MOTHER, supra note 12, at 39-43 (discussing some of the problems inherent in sameness of treatment models). 21. See Martha Albertson Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 AM. U. J. GENDER SOC. POL'Y & L. 13, 20-22 (2000) [hereinafter Cracking the Foundational Myths] (illustrating that the woman is normally the caretaker in the family and explaining the 1032 McGeorge Law Review / Vol. 32 result." Workplaces are designed with the unencumbered worker in mind and the law demands only that women be treated the same as the gendered icon of the autonomous individual. 23 The solution offered by advocates of equality, of course, is to complement and facilitate women's movement into the market with men's movement into the nursery. This idealized resolution substitutes androgynous individuality for differentiated, complementary roles within the traditional family. The norm in the family has also become one of equality--matching, at least rhetorically, the expectations of the workplace. The family, however, retains its private character: equality may be imposed in a formal manner--the rules are gender neutral-but the monitoring and implementation of equality within the 2 family are left to the individual family and its members. Within the family, powerful economic, cultural and social pressures continue to channel behavior into traditional, not egalitarian modes. The differences in the development and implementation of equality in the family, as contrasted with the workplace, have wrought a world in which caretakers (typically mothers, wives and daughters) are now free to compete with unencumbered women and men in a workplace that remains basically unchanged in its expectations for workers and fails to take competing family demands into account.25 As a society, we remain relatively unresponsive to the contradictory and conflicting demands placed on caretakers within families who also are in the paid workforce.26 In fact, we indulge in the fiction of the modern, egalitarian family in full operation in a transformed world of "ungendered" relationships. Corresponding to the misconception of the gender neutral family is the perception that the gender revolution has been successfully accomplished in the workplace, at least in regard to the acceptance of equal opportunity and anti- discrimination norms. This misperception can only be maintained so long as caretaking and its costs are hidden within the family, which allows the fiction of a level playing field to flourish. Shorn of family dependency, individuals can be 27 expected to engage in unfettered competition. There are problems with these set burden it places on them). 22. Id. at 26-27. is 23. See Masking Dependency, supra note 10, at 2202 (noting that "the egalitarian aspiration ensconced in law"); Cracking the FoundationalMyths, supra note 21, at 21. 24. Id. at 2201 ("[Elarly reformers merely expected that fathers would perform more household duties as modem mothers spent more time and energy on market endeavors.